This is a huge deal because there is no federal law enacted by Congress prohibiting discrimination against LGBT employees and only a dozen states have enacted state laws protecting civil rights based on gender identity or gender expression (in contrast to over 20 states that have law protecting civil rights based on sexual orientation). Thus the Justice Department reversing its previously held position and now endorsing the concept that "sex" includes "gender identity or expression" is very significant.

After considering the text of Title VII, the relevant Supreme Court case law interpreting the statute, and the developing jurisprudence in this area, I have determined that the best reading of Title VII' s prohibition of sex discrimination is that it encompasses discrimination based on gender identity, including transgender status. The most straightforward reading of Title VII is that discrimination "because of ... sex" includes discrimination because an employee's genderidentification is as a member of a particular sex, or because the employee is transitioning, or has transitioned, to another sex. As the Court explained in Price Waterhouse, by using "the simple words 'because of,' ... Congress meant to obligate" a Title VII plaintiff to prove only "that the employer relied upon sex-based considerations in coming to its decision." 490 U.S. at 241-242.It follows that, as a matter of plain meaning, Title VII' s prohibition against discrimination "because of ... sex" encompasses discrimination founded on sex-based considerations, including discrimination based on an employee's transitioning to, or identifying as, a different sex altogether. Although Congress may not have had such claims in mind when it enacted Title VII, the Supreme Court has made clear that Title VII must be interpreted according to its plain text, noting that "statutory prohibitions often go beyond the principal evil to cover reasonablycomparable evils, and it is ultimately the provisions of our laws rather than the principal concerns of our legislators by which we are governed." Oncale v. Sundowner Offshore Servs., 523 U.S. 75, 79 (1998).

It basically says what I said, but in a lot more words, and using Supreme Court precedent. This is a very important result and it will be interesting to see if this signals the next evolution of civil rights jurisprudence which is that discrimination on the basis of sexual orientation (i.e. against LGB people) is also sex discrimination. I have believed that it is, and the best explanation for why this is I have ever read is in Andrew Koppelman's now seminal 1994 law review article "Why Discrimination Against Lesbians and Gay Men is Sex Discrimination."

The interesting situation now is that currently the T in LGBT have federal employment protections while the LGB do not, while the LGB have many more states where they are protected under state law and the T are not. Surely this untenable status quo can not be maintained for long.

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